Partie 1 - Chap 2 PDF

Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni jurists: the prince can decide what he wants, but the jurists will interpret it in the light of what is right according to natural law. o In any case, t...

Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni jurists: the prince can decide what he wants, but the jurists will interpret it in the light of what is right according to natural law. o In any case, this shows that Ulpian did not intend to defend the existence of a natural law capable of defeating positive law. The subversive dimension of natural law, evoked theoretically by Cicero, finds little support in the great text collected later by Justinian. For example, the Romans, nourished by Stoicism, fully accepted that slavery was not, contrary to Aristotle's view, a matter of natural law. o Ulpian wrote that, according to civil law, slaves were not persons, but that this was not the case with natural law, since all men were born equal, specifying that it was the ius gentium that introduced slavery. Despite this contradiction between natural law and positive law, there is no question of calling this institution into question. So, the reference to the natural equality of men had no practical impact on Roman law. Centuries later, as we shall see, the same theoretical assertion was to be found in the American Declaration of Independence of 1776: no one is unaware of the difficulty of putting it into practice, even today. Chapter 2.Medieval Natural Law §1. Introduction a) general context In 476, after the overthrow of the Western Roman Empire by the Germanic peoples, Europe witnessed great population movements for five centuries, following invasions by Germans, Slavs, Arabs, Vikings and Hungarians. For a thousand years after the fall of the Western Roman Empire, the intellectual world was essentially dominated by the Christian Church, which helped natural law to survive the Middle Ages, but above all ensured that the Bible became the main legal text. The importance of this phenomenon should not be underestimated. After having been placed at the service of Roman political imperialism, Christian monotheism became the ultimate spiritual and legal reference. The primary provider of certainty is no longer, as it was for the Greeks, nature, immutable, immanent, objective and determined, but God, a subjective entity, endowed with intention and transcendent, who has granted freedom to men while imposing his divine commandments on them. It is no coincidence that the authors who will mainly hold our attention during this period are Christian thinkers: Augustine (4 th century), Thomas Aquinas (13th century), William of Occam (14th century) and the Spanish scholastics (16th century). o According to Marcel Gauchet, the passage of the year 1000 constitutes a decisive break that will determine the continuation of Western history. At that time, what had been in the making since the monotheistic invention, particularly the Christian one, was realised, namely the division of the orders of reality between the visible and invisible worlds, which would allow men to inscribe their action in this world in a different way. For the first time in history, according to him, our world becomes a horizon in itself, marking the beginning of man's autonomy from the heavens and the birth of the notion of material growth. As one might expect, such a development implies political-religious and philosophical-legal changes. On the politico-religious level, there was a permanent tension between the temporal and spiritual powers, illustrated by the famous Investiture Controversy, which essentially aimed to determine whether the Emperor or the Pope was in charge of the investiture of bishops. At the end of the 11th century, the monk Manegold of Lautenbach (1030-1103) took a position on the conflict between Pope Gregory VII and the German Emperor Henry IV, considering that the latter owed his power only to the pact concluded with his subjects and that in the event of a breach of this pact (idea of social contract and asymmetry between the Pope and the Emperor because the latter is chosen by the its subject and there is a convention between them, whereas the Pope doesn’t need this pact, his statute is given by God), the latter were relieved of their duty of allegiance. In 1324, the physician and philosopher Marsilio of Padua, in his Defensor Pacis, defended the idea of completely different spheres of temporal government and spiritual authority, and even the subordination of the Church to the State in temporal matters, for which he was forced to flee to Paris and condemned as a heretic by two popes. If the empowerment of the earthly world justified the Church's mediating position, it also limited its political claims and prepared the way for the kingdoms to come to the fore, entities more territorially limited than empires but aspiring to complete power within this limited sphere. Kings ceased to be the direct agents of spiritual government Page 15 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni and the Papacy admitted the autonomous jurisdiction of temporal powers, heralding the demise of the feudal system and the creation, a few centuries later, of modern states. Finally, the 10th and 11th centuries mark the rediscovery, thanks to the Arab occupation of the Iberian Peninsula, of a large part of the Greek heritage. The work of Aristotle especially will fascinate authors such as Thomas Aquinas after having made a clockwise loop around the Mediterranean from the 6th centur. Both the stronger and better organised governments and the more disciplined and autonomous Church developed a close relationship with the birth of the European university and encouraged the renewal of Roman law teaching. At the beginning of the 12 th century, a Bologna professor by the name of Irnerius taught, instead of Germanic laws, the Digest of Justinian, which seemed to have disappeared since the 7th century, and which forms the Corpus Iuris Civilis with the Institutes, inspired by the work of Gaius, the Codex and the Novellae. While Augustine's medieval Christian law may have been sufficient for rural communities and small feudal groups, it was too vague to regulate the economic revival, and could not compete with the structure, logic and, above all, the method of Roman law codified by Justinian. Furthermore, secular rulers were inspired by the division within the papacy into different sections dealing with legislation, jurisdictional decisions and administration. From then on, legal innovation became the core of sovereign authority and no longer had to be disguised as a rediscovery of neglected custom. The legal fragmentation of the Middle Ages, which had succeeded the Roman centralisation and was functioning in a very limited way, was replaced by the unifying forces of Roman law, and of canon law, whose impact remained limited ratione personae et materiae. In the shadow of normative authority, individuals, initially disarmed, would nevertheless acquire a status which, several centuries later, would make them the source of political power thanks to the theories of the social contract. b) natural law through the middle ages We have seen that the conception of Greek philosophers such as Aristotle was fundamentally inegalitarian. The Christian message, under the influence of Paul of Tarsus in particular, replaced the postulate of natural inequality with that of moral equality, associated with the idea of individual freedom, by combining Stoic speculations about a universal human nature with Judaism's concern for conformity to a divine will ▪ This will, however, is no longer purely external but is internalised, with Paul linking divine will and human action and suggesting that the two can be merged in every human. A first Christian version of natural law? (Voy Text pg 40) In this text we see two important aspects for natural law: the connection of the law to nature ('by nature') and the immediate access to this law by the human conscience ('written in their hearts'). While there is some controversy as to whether Paul is referring to natural law, it is clear that this text was seen as such by early Christian thinkers and the founding fathers of the Church, including St Augustine and St Isidore of Seville. We shall return to Saint Augustine in more detail later on. As for Isidore of Seville (570-636), he played an important role in the transmission between the Roman jurists of the 2d century AD and the medieval authors, whether canonists or civilists. In his Book of Etymologies, he takes up Ulpian's tripartite distinction between jus naturale, jus gentium and jus civile. However, he alters its meaning by defining natural law as referring to what 'is common to all nations: what everywhere results from a natural inspiration and not from any institution'. According to him, this applies to the union of man and woman, the education of children, the common possession of all things, the obligation to return entrusted property or the "right to repel violence by force". If it is clear that Isidore rejected Ulpian's conception insofar as it was also aimed at animals, he nevertheless preserves the reference to a "natural inspiration" which does not necessarily seem to go hand in hand with, for example, the obligation to return a good to his/her owner. As for the ius gentium, it is more akin to a positive law common to (almost) all nations and seems to be mainly concerned with the law of war (already foreshadowing its evolution into public international law). Isidore also distinguished between laws, according to whether they were divine (fas, by nature) or human (jus, by mores). The interaction between this latter distinction and the tripartite one is not very clear. Page 16 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni In any case, there is no doubt that Isidore's distinctions were to inspire Gratian, who himself would significantly influence the theologians who followed him. Little is known about Gratian, except that he was probably a monk. Around 1140 he published a book entitled Concordentia discordantium canonum, which became known as the Decree of Gratian and which brought together a mass of 'rules' of ecclesiastical authority (canones), amounting to almost 4,000 texts. This decree formed the basis of the Corpus juris canonici (1582), which remained in force until the publication of the Code of Canon Law in 1917. In his Decree, Gratian gives two definitions of natural law : At first sight, these two definitions raise doubts about the success of Gratian's enterprise, which aimed not only at compiling but also at reconciling discordant texts. The rest of the text leaves no doubt: Gratian quotes Isidore and clearly distinguishes between divine laws and human laws (or, more precisely, mores enshrined in law, which concerns both written laws and customs). Under natural law, each person is commanded to treat others as he/she would like others to treat him/her and not to treat others in ways that one would not like to be treated. This is the Golden Rule, which is found in many religious traditions (but not much in Aristotle) and plays a central role in Christian dogma. I. Natural law is identified with divine law There is more: this natural law is found in the Bible! Did Gratian mean to say that everything in the Bible is natural law? Or that natural law is found only in the Bible? The first hypothesis can probably be easily excluded On the basis of the text itself:  Gratian explicitly states that not everything in the Bible is natural law. Thus, eternal moral precepts such as the prohibition of murder are natural law, but not 'mystical' precepts such as sacrifice. As for the second, a positive answer would hardly combine with St. Paul's text, which implies an independence of natural law from scripture (natural law is written in our hearts). This does not seem to be what Gratian meant. II. It refers to the roman definition, as adapted by Isidore, There is a reference to the universal dimension of natural law, which can be traced back to Gaius, and to the natural instinct mentioned by Ulpian. As in Isidore of Seville, however, natural law refers to the law common to all nations and not to the rules common to humans and animals.  The relationship between these two definitions has given rise to countless controversies. It is difficult to say that (all) the moral principles contained in the Bible which, according to Gratian, are immutable, exist 'by natural instinct'. Does the prohibition of murder fall into this category? What about the Golden Rule (even if it were considered common to all nations)? The contradictions of the Decree do not end there: Gratian further writes that natural law is prior and superior to all things, so that everything that has been adopted as custom or imposed by law (whether ecclesiastical or secular laws) must be considered null and void if it contradicts natural law. Yet Gratian also writes that slavery is not an institution of natural law and that it is permitted by positive law, which is not a problem for him, any more than it was for the Roman jurists. The canonist Rufinus, in 1160, introduces a subjective aspect to natural law (naural law becomes a right), emphasizing a force inherent in humans for doing good and avoiding evil. This subjective natural law concept contrasts with the Stoic idea of cosmic determinism. Rufinus also introduces a distinction between commands, prohibitions, and demonstrations within natural law, categorizing evolving aspects like property and slavery as authorized but not imposed or prohibited. Demonstration : this category refers to things authorized by natural law without being, like the first, imposed or, like the second, prohibited. The others categories concern the invariable core of natural law, whereas authorisations cover the evolving dimension of natural law, which can develop (but not diminish). The Decretists, commentators on Gratian's Decree, further complicate the matter by distinguishing seven meanings of natural law, ranging from Ulpian's definition to the Golden Rule through the human capacity to discern good from evil. Page 17 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni §2. Augustine a) A few words about him Augustine, born in 354 AD in Thagaste (modern-day Souq Ahras, Algeria), initially studied rhetoric in Carthage. Influenced by Cicero, he developed a strong desire for "immortal wisdom" and initially leaned towards the Manichean doctrine. Teaching in Carthage and later in Rome, Augustine encountered Plotinus' philosophy and was profoundly influenced by Bishop Ambrose, leading to his conversion in 386. In 396, he became the bishop of Hippo in present- day Annaba, Algeria. Amidst the sack of Rome by Alaric's Visigoths in 410, Augustine responded with his monumental work, "The City of God," written over the last 20 years of his life. He died in 430 during the Vandal siege of Hippo, marking the transition from ancient philosophy to medieval Christian thought. Augustine's extensive literary output, spanning over 43 years, emphasized the idea that reason guides faith. According to him, faith involves a rational adherence to truth, viewing Scriptures as useful only when understood. Augustine's earlier emphasis on human will for salvation evolved in his later work, "Retractations," where he critically revised his writings. He regretted prioritizing philosophy over Christianity and overemphasizing human will. Augustine asserted that while the natural order created by God is good, human freedom, tainted by original sin, requires divine grace for salvation. Despite grace, human freedom allows the possibility of choosing evil and straying from salvation. Augustine's renowned distinction between the city of God and the city of men reflects the imperfection of the latter compared to the perfection of the former. This concept parallels Plato's differentiation between the world of ideas and the imperfect real world, where the philosopher seeks enlightenment by leaving the cave. Augustine's legacy lies in bridging ancient philosophy with medieval Christian thought, shaping theological discussions for centuries to come. b) Justice and the City of God (voy text page 44 syllabus) Augustine, in this text, appears to align with the ancient tradition, particularly Cicero, in defining a republic as a community united in agreement about law and shared interests. However, he strategically emphasizes a radical departure in his thinking, introducing a fundamentally new conception of natural law intertwined with divine justice. Starting with Cicero's definition, Augustine criticizes the Roman republic, asserting that true justice is indispensable for consensual law. Without justice, there can be no legitimate law, and thus, no genuine republic, according to Augustine. He challenges the Roman notion that law derives from justice, dismissing it as inconsistent with the sophists who equate law with the interest of the strongest. Augustine's sleight of hand lies in his assertion that the Romans' justice is not true justice. He contends that separating man from the true God, enslaving him to unclean spirits, does not align with the virtuous act of rendering to each person what belongs to them. Augustine argues that iniquitous institutions of men should not be labeled as law; absolute values like goodness and justice come from God and are known through illumination. Augustine proposes an alternative definition of the people as a reasonable multitude united in the peaceful and common possession of what they love, replacing the notion of interest with love. This definition, distinct from Cicero's, omits any reference to law and allows for the inclusion of any society, postponing the question of justice. While Rome and Greek cities fit this new definition, Augustine contends that they lack the virtue of justice. The struggle between the love of God and self is portrayed through the contrast of two cities – the city of God, associated with a mystical community of believers, and the city of man, reflecting godless societies. Augustine underscores that citizens of the city of God transcend language and cultural differences, embodying a universalist conception inherited from the Stoics. The text prompts self-reflection, urging individuals to determine their citizenship based on the love they hold in their hearts. Augustine's vision embraces a mystical and universal community, challenging traditional notions of republics and justice. Martin Luther King, echoing St. Augustine, asserted that 'an unjust law is no law at all,' a concept found in Augustine's early work, "De libero arbitrio" (On Free Will). Augustine, defending the idea that God granted free will to His creatures, argued that humans bear the responsibility for sin through their capacity to act wrongly. Page 18 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni The statement implies that an unjust human law contradicts a higher, non-human law and, therefore, should not be obeyed. Augustine criticizes earthly cities for pursuing false happiness, but he acknowledges the necessity of human laws for maintaining peace and order. Despite their potential injustice from a divine perspective, these laws must be obeyed to uphold societal order. Augustine emphasizes the importance of order, stating that the well-ordered concord of citizens ensures peace in the earthly city, while the heavenly city's peace involves a harmonious community enjoying God. He underscores the need for rules to guide human behavior due to human weakness. Augustine acknowledges the possibility of conflict between natural and positive law but, like Cicero, argues that this doesn't necessarily lead to legal or practical consequences. An unjust law, while not considered a true law, doesn't mandate disobedience. Thomas Aquinas, building on Augustine's ideas, suggests that once laws are established, judges must conform to them, even if they were judged differently during their creation. The text notes an ambiguity in Augustine's thought regarding whether natural law is independent of divine will, highlighting the ongoing debate on this topic. Despite Augustine being labeled a 'voluntarist' – asserting that the eternal law aligns with God's will – he also acknowledges that certain actions are intrinsically evil independently of any will. This ambiguity will be revisited in the study of natural law with Grotius. §3. Thomas Aquinas (1225-1274) a) a few words about Thomas Aquinas Here we are forced to take a leap in time of several centuries. In the 13th century, two phenomena, unrelated to each other, shook up the intellectual world: on the one hand, the appearance of the mendicant orders (Franciscans and Dominicans), which seemed to challenge the established order by promoting evangelical poverty, and on the other, the rehabilitation of Aristotle's work, which proposed a global explanation of nature constructed outside of Christian revelation. Aristotle shocked and fascinated at the same time, which explains why the University of Paris forbade the public teaching of the Stagirite's thought (with an exception for a few masters). Drawn to the Dominican order, Thomas Aquinas never stopped trying to reconcile the Christian faith and the work of Aristotle. Born in 1225 in the castle of Roccasecca, between Rome and Naples, Thomas came from a noble family. At the age of 5, he was sent to the abbey of Monte Cassino where he entered as an aspiring monk. At the age of 18, he asked to join the Dominican order without consulting his family, whom he knew would not approve of his decision. The Aquinas family did not want a mendicant friar because of the quasi-revolutionary nature of the movement. To escape this troublesome family, he left Naples for Rome and then Paris, but his brothers managed to intercept him on the road to Paris and locked him up in the castle of Monte San Giovanni. Rumour has it that his brothers even went so far as to bring a prostitute where he was held prisoner in order to divert him from his vocation... without success. After a year, he managed to escape by climbing down from a window and took refuge in Naples. Years later he commented on his decision to join the Dominican Order: "One must keep away from such a decision blood relatives above all, who in this respect are enemies rather than friends". In 1245, Thomas was sent to Paris, which was to become the intellectual centre of the Western world. There he met Albert the Great, passionate by Aristotle, who helped him to be appointed professor of theology at the University of Paris. From 1259 onwards, Thomas taught in several Italian cities, notably Naples and Orvieto. It was during this period that he worked on his most famous work: the Summa Theologica, a monumental theological and philosophical treatise (more than 3,400 pages) which he never managed to complete. He then returned to Paris for a few years before moving back to Italy where he died in 1274. Three years later, the Bishop of Paris condemned 219 propositions, some of which were associated with Thomistic doctrine (and its artistotelian influence). This doctrine was however cleared of all suspicion in 1323, when Thomas was canonised by Pope John XXII. Following Augustine, Thomas tries to reconcile reason and faith. According to him, reason must serve faith. For him, since grace does not destroy nature, but rather perfects it, it is the duty of natural reason to serve faith. However, he preferred Aristotle to Plato, whom he criticised for privileging the world of ideas over the real world. Adopting the Aristotelian concepts of power and act, form and matter, but also notions borrowed from the Arab philosopher Page 19 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni Avicenna, such as that of essence and existence, Thomas considers that being is to substance what act is to power: the world is created, but it could not have existed, it is a gift from God. b) about society (voy text page 48 syllabus) This text underscores Aristotle's influence on Thomas Aquinas while highlighting Thomas's distinct approach in reconciling Aristotelian doctrine with Christian dogma. The key points are: I. Reason Guides Toward Social Life: The text emphasizes Aristotle's idea that reason (logos) directs humans towards their ultimate purpose, which is not solitary existence but life in society. This aligns with Aristotle's assertion that humans are political animals. II. Revaluation of Life in Society: The notion of life in society gains importance when viewed through the lens of Augustine's conception of the city of men. Thomas integrates this idea into his thinking, suggesting a nuanced understanding of societal existence. III. Reconciling Aristotle with Christian Doctrine: Thomas Aquinas's project was not mere replication of Aristotle but a comprehensive effort to reconcile Aristotelian principles with Christian dogma. Notably, he acknowledges that the light of reason is a divine gift. IV. Opposite View of Church's Role: Thomas, in selecting Aristotle, seems to diverge from the Church's stance during the Investiture Controversy. Unlike arguing for a predominant role for the Church in governing temporal matters, Thomas emphasizes the natural inclination of humans to form societies. He suggests that the divine intervention is limited to providing reason, and the emergence of secular power doesn't necessitate ecclesiastical mediation. V. Absence of Ecclesiastical Authority in Secular Power: Thomas's perspective implies that the birth of secular power doesn't require direct involvement or mediation by ecclesiastical authority. This stance diverges from the Church's historical claims to influence secular governance. In essence, Thomas Aquinas, while drawing on Aristotle's insights, adapts them to align with Christian doctrine, particularly emphasizing the divine gift of reason. His nuanced approach diverges from the Church's historical positions, suggesting a more naturalistic view of societal and political development. b) Princeps legibus solutus est ? (voy text page 48 syllabus) In the first extract, Thomas Aquinas explores the question of whether a prince is bound by laws. He addresses the adage "Princeps legibus solutus est," asserting that the prince stands above the laws in their "directive" force, meaning he adopts and binds others with his authority. However, Thomas introduces the principle of canon law that one must adhere to the rules imposed on others. This principle, akin to the Roman adage "patere legem quam ipse fecisti," (suffer the law you made and its consequences) suggests that the prince is morally bound by the laws he sets. While the prince remains above the law in terms of modification and dispensation, divine judgment imposes a moral rather than a legal constraint. In the second extract, Thomas writes to the King of Cyprus, adding nuance to the absolutist dimension of sovereignty. He posits a contractual relationship between the king and subjects, allowing some leeway for the king but not the right to act like a tyrant. Thomas introduces the idea that if the king violates his commitments and behaves tyrannically, the people can refuse allegiance and depose him, even if he had promised eternal fidelity. He emphasizes that public authority is preferable to private initiatives in resisting the cruelty of tyrants, advocating for the right of the entire people to resist only in cases of tyrannical abuse of royal power. Thomas does not endorse civil disobedience or individual resistance but acknowledges the collective right to resist oppressive rulers, aligning with the principle of "exception d’inexécution" or the right to refuse allegiance when commitments are not honored. This perspective differs from John Locke's later position on resistance, yet Thomas maintains that laws contrary to natural law cannot be validly judged. c) Eternal law, natural law, human law and divine law (voy text page 50 syllabus) Thomas Aquinas outlines key elements in his understanding of law: Page 20 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni 1. Definition of Law: Thomas defines law as the "dictate of practical reason emanating from the ruler who governs a perfect community." This aligns with the earlier definition as an ordinance of reason for the common good, promulgated by the one in charge of the community. 2. Practical Reason: The primary source of law is practical reason, distinct from speculative reason that deals with unchangeable things. Thomas draws a parallel with Aristotle's distinction between the scientific and deliberative parts of the soul. 3.Common Good: Emphasizing continuity with previous thinkers, Thomas asserts that the law aims at the common good, echoing ideas from philosophers like Cicero. 4. Competent Authority: A crucial element for legal positivism is that the rule of law must be adopted by a competent authority, typically the ruler or leader of the community. 5. Promulgation: Essential for legal certainty, the law must be promulgated, allowing those to whom it is addressed to know it. Thomas argues that natural law is naturally knowable as it is introduced into the minds of men by God. 6. Eternal Law: Assuming divine providence governs the world, Thomas introduces the concept of eternal law, identified with divine reason and the governing principle of God. Natural law is considered the manifestation of the eternal law. 7. Natural Law: Thomas distinguishes natural law from eternal law, stating that while humans cannot directly apprehend the eternal law, they can know it to some extent through its effects. Natural law is described as the rational creature's participation in the eternal law, discovered within oneself and in harmony with natural disposition. 8. Content of Natural Law: Thomas articulates the first major precept of natural law as "do good, avoid evil." While not providing specific guidance for every situation, it serves as a general orientation for human actions, akin to a mold into which all actions must fit. → Thomas's understanding of law incorporates elements of reason, divine order, and the pursuit of the common good, contributing to the development of legal philosophy. Then, Aquinas elaborates on key aspects of natural law: i. Human Inclinations: Thomas asserts that man is naturally inclined toward things that are good and worthy of achievement. The order of precepts in natural law aligns with the natural inclinations of humans. Derived from shared nature with all substances, obligations include self-preservation. From shared traits with other animals, such as the union of male and female and care for offspring, obligations arise. Additionally, as a rational being, man has a natural tendency to seek the truth about God and live in society, leading to obligations to avoid ignorance and harm to others ii. Concupscience and reason : Thomas addresses concupiscence, stating that while sensual inclination in animals serves the general good, in humans subject to reason, concupiscence goes beyond rational bounds iii. Universality of Natural Law: Thomas explores whether natural law is the same for everyone. While the first general principles are identical for all, there can be exceptions in the application of second precepts. As practical reason deals with contingent realities, exceptions may multiply in detailed applications. Thomas illustrates this with the example of returning a deposit, noting that situations may arise, like a madman claiming weapons, where the property does not have to be returned. iv. Immutability of Natural Law: Addressing the question of whether natural law can change, Thomas distinguishes between first and second precepts. He emphasizes the absolute immutability of the first precepts, stating that while second precepts may have exceptions in particular applications, the first precepts are unchanging. He argues that natural law can only be modified by Page 21 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni addition, suggesting that institutions developed by human reason for the good of humanity enrich rather than alter natural law. Thomas's insights contribute to the understanding of natural law, emphasizing its connection to human inclinations, reason, and the pursuit of the common good. Thomas Aquinas delineates four categories of law: eternal law, natural law, human law, and divine law. For Aquinas, eternal law is the divine order that governs the universe. It is the highest and unchangeable law, reflecting the rational plan of God. Humans participate in eternal law through natural law, which is derived from it.  Indeed, Thomas explains that natural law is a participation in eternal law by rational creatures. It is a set of moral principles inherent in human nature, guiding individuals to discern right from wrong. Natural law is unchangeable and serves as a basis for human laws. Then he explain the their category, which is Human law, has two aspects. Firstly, human law translates or specifies natural law to make it more practical and applicable to societal contexts. Secondly, human law includes conventional laws, such as those related to customs or agreements (e.g., the right of way). These laws are based on human agreement and convention. Divine law encompasses the Old and New Testaments of the Bible. Thomas describes the Old Testament as a somewhat imperfect version of divine law for imperfect and immature individuals. The New Testament refines this law, creating a harmonious relationship between the two. Divine law complements natural law, guiding humans toward their supernatural end. It includes prescriptions enacted by God based on their inherent goodness or prohibition due to their inherent evil. Thomas emphasizes that God's will cannot change the inherent nature of good and evil; rather, divine law reinforces moral principles. To sum extent, Thomas provides a comprehensive framework for understanding different layers of law, ranging from the divine and eternal to the practical and conventional aspects of human laws. d) Natural law and written law (voy text page 53) In this text, Thomas Aquinas continues to develop his understanding of law, drawing heavily from Aristotle. Firstly, Aquinas distinguishes between natural law and positive (human) law. Natural law, derived from human nature, is not established by human authority but draws its force from the inherent nature of certain actions. On the other hand, positive law gains its authority through written enactment by a competent authority. Then, Aquinas emphasizes the importance of judgment aligning with written laws. Any deviation from these laws, whether in terms of natural justice or positive justice, is considered unjust. Human laws must be in harmony with natural law for their legitimacy. Also for him Natural law seems to have a source beyond the omnipotent will of God. While God created human nature, certain actions are inherently good or bad according to that nature. This suggests that, once endowed with a particular nature, certain actions become morally binding independently of God's will. Plus he also acknowledges the possibility of conflicts between positive laws and natural law. If a human law contradicts natural law, it is deemed unjust and carries no moral obligation. Such a law is considered a corruption of law and cannot serve as a basis for judgment. Furthermore, in cases where just laws might lead to inequitable outcomes due to unforeseen circumstances, Aquinas advocates judgment based on equity rather than a strict interpretation of the law. He uses the example of a besieged city with closed gates in order to protected the public good but in case of enemies pursuing the citizen on whom the salvation of the city depends, it would be harmful to that city not to open its gates to them. And therefore in such an instance the gates should be opened, in spite of the terms of the law, in order to safeguard the general interest Page 22 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni which the legislator had in view. So he is suggesting that, in certain situations, the spirit of the law (the legislator's intention) should prevail over its letter. We can see that Aquinas marks an evolution from Augustine's perspective, reintroducing reason into the center of legal reflection. Unlike Augustine's more vertical vision, Aquinas revalues the city of men and acknowledges the limitations of human rationality, allowing for the application of equity in specific cases. In summary, Thomas Aquinas intricately weaves together natural law, positive law, divine will, and equity in his legal philosophy, addressing potential conflicts and emphasizing the importance of laws aligning with inherent moral principles. §4. The Franciscan rupture The Franciscan Order, founded by Francis of Assisi in 1210, emphasized ideals of poverty and fraternity. Despite rapid growth, the order faced the challenge of reconciling the commitment to poverty with accumulating wealth. Two key Franciscan thinkers from the 14th century, Duns Scotus and Occam, introduced a voluntarist dimension, breaking from the intellectualist conception. Voluntarism vs. Intellectualism: Franciscans like Duns Scotus rejected the intellectualist view that saw nature as a harmonious and immutable order. This was perceived as a limitation on divine omnipotence. Voluntarism emphasized the absolute power of divine will, allowing God to act independently of rational constraints. This contrasted with the intellectualists' belief that God's actions must align with reason. Divergence on Divine Will and Human Nature: Both intellectualists (13th century) and voluntarists (14th century) agreed that God had the choice not to create man. However, the disagreement arose from their views on divine will and human nature. Intellectualists believed that once God created man, he was bound by human nature, limiting the laws God could impose. Voluntarists argued that divine will was absolute and not constrained by human nature, suggesting that God could theoretically impose any law, even ones contradictory to human nature. Roots of Legal Positivism: The voluntarist positions of Duns Scotus and Occam, more than Augustine, laid the groundwork for legal positivism. By identifying divine law with natural law and limiting the latter to divine will, they paved the way for the later notion that positive law is solely the product of human will. This idea of positive law detached from divine authority gained prominence in legal positivism. a) Duns Scotus (1266-1308) Duns Scotus taught in the aftermath of the condemnations of 1277, both in Paris and in Oxford. The context was that of a 13th century turned upside down by the rediscovery of Aristotle: the Augustinian conception of free will was being challenged by a philosophy that gave precedence to the intellect over the will. The condemnations of 1277 were aimed in particular at reacting against the Greek determinism relayed by the interpretations of the Arab philosopher Averroes. Duns Scotus refused to integrate pagan philosophy and considered that the solutions to such important questions as God, nature and man could only be found in Holy Scripture, and must preserve the notion of human freedom. He therefore rejected the idea that the will depends on reason, as this implied the limitation of the divine will and freedom. For him, the law is essentially an act of the will, whereas Thomas made it an act of reason combined with an act of the will. To the Thomistic conception of the world, inspired by the Greek philosophers (especially Aristotle) and made up of generalities that can be apprehended by reason, Duns Scotus opposes a world of individuals, subject to the absolute and unfathomable will of God, in which law is reduced to the law, which is only a set of individual commands. It should not be concluded that Duns Scotus denied all objectivity to natural law: he admits its existence but considerably restricts its scope by limiting it to what God cannot but impose on man on pain of contradicting himself. This is true of the first commandments, such as the one prohibiting the existence of other gods. Some passages in his work also cast doubt on the fact that he is totally voluntaristic, notably when he writes that it is right reason that allows us to distinguish between good and evil. Page 23 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni b) William of Occam (1287-1347) William of Occam, an English monk, philosopher, and theologian, played a significant role in the nominalist school of thought, particularly in the dispute over universals. His contributions to the debate and his defense of the Franciscans' right to property are crucial aspects of his intellectual legacy. Nominalism and Universals: Occam followed Duns Scotus in championing nominalism against realism. Nominalists, like Occam, argued that universals are not real entities but conventional terms created by humans to understand the world. Occam, a moderate nominalist, believed that universals were conventional labels with meaning assigned arbitrarily.  In reality, the issue is more complex and one must distinguish between radical nominalists, for whom universals are empty words, they have no meaning ('Brussels' means something but 'city' means nothing) and moderate nominalists like Occam, for whom universals are conventional terms: they name individuals who share characteristics and, while they are not real, they possess the meaning that is arbitrarily given to them. Similarly, radical realists (such as John Scotus Erigena) consider universals to have an independent reality of their own, whereas moderates, such as Thomas Aquinas, believe that they are real but have no independent existence: they exist only in the concrete individual and in the mind that conceptualizes them.  It is interesting to know that this nominalist approach, which appeared until two centuries laters, influenced thinkers likes Hobbes, Locke and Hume.. It contributed to the development of individualist thinking by focusing on the singularity of individuals rather than shared characteristics. Franciscans and the Wealth Debate: Occam's relevance becomes apparent in his defense of the Franciscans' position on wealth, challenging Pope John XXII's reconsideration of their rights. Initially, the papacy allowed the Franciscans to use what they needed, but in 1321, John XXII argued that the use of consumable goods implies a natural right of property, referencing Adam's dominion over the world in Genesis. Papal Challenge and Occam's Reaction Pope John XXII's assertion led to a challenge from several Franciscans, including Occam. Occam contested the idea that Adam's dominion implied individual property by divine law. He defended the Franciscans' right to renounce ownership and maintain their commitment to poverty. 5. The birth of the notion of individual right “The right of use (jus utendi) is a legal power to use an external object; a power of which no one can be deprived against his will unless he has committed a fault or there is some other reasonable cause; a power such that, if someone is deprived of it, he can take legal action against the person who deprived him of it” (William OF OCCAM, Opus nonaginta dierum) William of Occam's philosophical contributions, particularly his defense of the Franciscans and his distinction between 'ius positivum' and 'ius naturale,' mark a significant shift in medieval thought, setting the stage for later discussions on individual rights and human freedom. Interpretation of 'Dominamini': Occam challenged the interpretation of 'dominamini' in Genesis, arguing that it was addressed to both Adam and Eve, negating the idea of individual property. He contended that the term implied a power to govern, not a concept of property. Occam acknowledged a lawful power of use (jus utendi) conferred by God, which is certainly a natural right that cannot be renounced, but considered it necessary to distinguish the situation before and after original sin.  Before the fall, men had this natural power to use things, but there was no such thing as property. The power of appropriation came only later, as a result of both nature and human reason in the sinful condition. All things were then divided by the accumulation of laws, conventions and customs giving property rights their status as a right of human origin but authorized and even, once adopted, protected by natural law. According to Occam, it is therefore 'lawful to renounce ownership and the power of appropriation but no one can renounce the natural right of use'. Evolution from Natural Law to Natural Rights: Occam's distinction between 'ius positivum' and 'ius naturale' in its subjective sense, representing an individual right, contributed to the emergence of the notion of "droit subjectif" Page 24 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni (subjective right). This shift from natural law to natural rights was a nuanced development, placing emphasis on individual rights within the legal discourse. Subjectivist Conception and Social Contract: Occam's subjectivist language, rooted in the context of Christian morality and the emphasis on human freedom, influenced later writings. The absolute freedom of humans, reflecting the image of God, introduced the idea of individual responsibility and the possibility of choosing to be part of society. This laid the groundwork for the emergence of the social contract concept in subsequent centuries. Indeed, Humans, made absolutely free in the image of God, must be able to be judged responsible for the evil the commit. They must also be able to choose to be part of society, which can then not be conceived as an original status. This opens the way to the figure of the social contract that will emerge a few centuries later. Enduring Influence and Lineage to Modern Human Rights: Occam's ideas, preserved through the works of later jurists like Gerson and Summenhart, contributed to the discourse on individual rights. The debates among these authors, including discussions on the right to self-preservation, laid the foundation for the concept of human rights. A direct line can be traced from the canonists of the 12-13th centuries through to the development of modern human rights, with the Spanish scholastics of the 16th century playing a crucial role. §5. Towards modern natural law: (subjective) natural law and reason The Renaissance, which began in Italy in the 14th-15th centuries, reached France in the 16th century. However, France and England were preoccupied with the Hundred Years' War until 1475. In the early 16th century, the reformative movements led by Luther and Calvin significantly impacted the religious landscape. Luther emphasized the direct relationship between the believer and the Bible, rejecting the need for tradition or the church. He stressed systemic interpretation and the believer's adherence to the law of Christ. While Luther acknowledged the necessity of positive laws due to the prevalence of sinners, he maintained absolute obedience to temporal authority, influenced by Augustinian views. The Renaissance and Reformation played crucial roles in secularizing public life and emancipating individuals from spiritual authority. These movements contributed to the emergence of the modern world, with the 16th century witnessing a cultural shift where the clergy no longer monopolized education. A new social class of wealthy bourgeois and nobles, freed from military duties, became patrons of intellectual pursuits. In this changing landscape, natural law gained popularity among legal scholars, particularly among Spanish scholastics and English jurists. The need for a new religious legitimation, coupled with the association of natural law with reason and individualism, marked a significant development in the evolving concept of the modern state. a) the Spanish Scholastics (the school of Salamanca) In response to the reformist doctrine, the School of Salamanca, represented by scholars like De Vitoria and Suarez, defended a Thomistic revival against Calvinism. Unlike Calvinist predestination, they favored the theory of 'sufficient grace' provided by God to all humans. This allowed them to rediscover natural sources of law and principles of justice. While building on Thomas Aquinas' doctrine, they departed by emphasizing an evolution from natural law to a more rational law. Unlike Aquinas, who viewed law as directed toward a transcendent end, they presented it as a system of laws conferring individual rights, marked by deductive reasoning. The humanism of Spanish jurists and theologians, disturbed by the mistreatment of Native Americans, played a role in the development of the idea of natural rights. The controversial Valladolid debate (1550-1551) epitomized this, primarily featuring the Dominican friar Bartolomé de Las Casas and the theologian Gines de Sepulveda. 1. Sepulveda, defending slavery, cited Aristotle and Aquinas, arguing that it was natural for some to be masters and others slaves, asserting the inferiority of the American Indians justified their enslavement. 2. Las Casas, drawing on Stoic and Christian principles, passionately argued for equality among all human beings, vehemently opposing slavery and the dispossession of the Indians from their land. This debate marked a significant chapter in the exploration of natural rights in response to colonial injustices. Page 25 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni 1. Fransisco de Vitoria (1492-1546) De Vitoria, a Dominican scholar, contributed significantly to the Salamanca School, rethinking Thomistic principles of natural law in the context of the 16th century. Besides his influence in public international law, where he defined "ius gentium" as a law common to all nations, applied to states, he played a crucial role in establishing principles like state sovereignty, freedom of movement, freedom of the seas, and the fundamental rule of "pacta sunt servanda" in conventional international law. De Vitoria argued that, lacking supranational institutions, natural law serves as a vital source of inspiration for these principles. However, he introduced the idea that human reason and implicit consent of states, rather than nature, underlie these rules. In examining the law of states, De Vitoria concluded that neither natural law nor "ius gentium" justifies the enslavement of Native Americans or denies them property rights. He introduced the concept of "permissive" natural law, influenced by Franciscan subjectivation, asserting that property is a subjective power over an object. While drawing on Aristotle and Aquinas to support his theses, De Vitoria exercised some interpretive flexibility with their ideas : “As Aristotle elegantly and accurately observed, some are slaves by nature, namely those who are better fitted to serve than to rule. (…) To this I answer that Aristotle certaintly did not understand that such people belong by nature to others and no dominion over themselves and over other things” “He (Aquinas) says therefore that right is that which is licit in accordance with the laws. And so we use the word when we speak. For we say, « I have not the right of doing this », that is, it is not licit for me ; or again, « I use my right », that is, it is licit”. (De Vitoria, De justitia) In the first excerpt, there is a notable contrast between the initial recognition of Aristotle's influence and the subsequent interpretation, where Aristotle's view on natural hierarchy and slavery is questioned. The shift from Thomas Aquinas' understanding of law, focused on conformity with laws, to the Spanish jurist De Vitoria's amalgamation with a concept of individual rights, particularly the right to exist, marks a departure from Aquinas' perspective.  Contrary to Aristotle's stance on human equality and distinct from Thomas Aquinas' emphasis on rights, De Vitoria develops a conception asserting that all humans possess inherent natural rights rooted in human nature. These include the right to exist, the right to self-preservation, and the right to property.  While recognizing property as a human creation, once established, it is deemed protected by natural law, as illustrated by De Vitoria's statement that, concerning the Indians, no one has the right to take their lands from them. In navigating the complex context of Spanish colonization and the treatment of the indigenous people, De Vitoria introduces the idea of a natural right to self-defense. This becomes particularly relevant when addressing conflicts between Spanish conquistadors and the indigenous populations. While attempting not to entirely alienate Spanish authorities, De Vitoria maintains that, in case of an attack by the Indians, the Spanish have the right to defend themselves, even if it involves retaining confiscated possessions. The contention arises over whether this last aspect truly aligns with the concept of self-defense. 2. Fransisco Suarez (1548-1617) Francisco Suarez, a significant Jesuit philosopher born in 1548, earned acclaim as the "Doctor eximius" for his comprehensive treatises on law, metaphysics, and theology. His intellectual contributions primarily navigated the complex intersections of intellectualism, which emphasizes reason, and voluntarism, which underscores the importance of the will, particularly in the context of natural law. In grappling with the concept of natural law, Suarez engaged with the prevalent perspectives of his time. o On one side, there was the notion that natural law merely indicated what is inherently good or bad, detached from any divine or human will. o On the other side, there was the voluntarist stance, asserting that natural law derived entirely from divine commands, as advocated by thinkers like William of Occam. Suarez, however, steered away from these extremes. Page 26 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni But Suarez proposed a nuanced understanding: natural law, according to him, is prescriptive. It is not a mere reflection of inherent goodness or evil but a set of prescriptions that express the divine will. While acknowledging that reason allows us to discern the intrinsic moral quality of actions, Suarez insisted that the binding character of natural law comes from God's explicit commands. This synthesis, distinguishing Suarez from both strict intellectualists and voluntarists, established natural law as a genuine legal framework rooted in divine will and reason. Delving into the realm of natural rights, Suarez, building on the works of Vitoria and Aquinas, recognized subjective rights inherent in individuals. Essential among these were the rights of self-defense and self-preservation, forming a foundational aspect of natural law. Suarez's exploration of permissive natural law allowed for modifications based on human actions, acknowledging changes such as the establishment of private property, protected by natural law against theft. Moreover, Suarez ventured into political philosophy, attempting to construct a theory of the state. He emphasized the importance of human will and consent in instituting public authority. Strikingly, the legitimacy of positive law was intricately tied to natural law in the frameworks developed by Suarez and his predecessor Vitoria. The rights of individuals and the authority of the state were intricately interconnected, showcasing a delicate balance in their coexistence. Finally, Suarez introduced the Greek concept of 'epikeia' into his legal and ethical considerations. This concept permitted the correction of legal applications when strict adherence to the law resulted in inequitable outcomes or undue hardship. This signaled a subtle shift from a purely legalistic concept of equity to a more compassionate Christian perspective, reflecting a desire to temper the potential harshness of legal enforcement with considerations of fairness and mercy. b) English lawyers (16th century) 1. Christopher Saint-Germain (1460-1540) Born in 1460, Ch. Saint-Germain studied law at Oxford and later became a renowned lawyer in London. In 1523, he wrote a famous dialogue between a Doctor "in Divinity" and a law student on the common law. This law textbook became a classic, and was superseded only by the famous Blackstone Commentaries more than a century later. Saint- Germain died at the age of 80. (Voy text page 62-63 sylla) Three things stand out on reading this text. 1. As already indicated, the central importance of reason: the law of nature is nothing else than the law of reason. As with the Spanish scholastics, natural law thus tends to free itself from nature, to be only about man. 2. It now seems established that the contradiction of positive law with natural law leads to the invalidation of the former: against natural law, no rule of positive law can prevail. 3. The text ensures continuity with Paul of Tarsus, who wrote 15 centuries earlier that the natural law is written in the heart of every man There is also continuity with Aristotle and Aquinas through the notion of equity: (voy text page 63) In his exploration of equity, Saint-Germain draws inspiration from Aristotle's notion of epikeia, emphasizing its significance in the development of English equity law.  The jurist acknowledges Aristotle's idea that a general rule of law may fall short in certain cases and contends that the intention behind the law should often prevail over its literal interpretation.  This infusion of Aristotelian ideas, transmitted through Thomas Aquinas, canonists, and humanists, serves as a foundational element in shaping the English doctrine of equity. Aligned with Thomas's perspective, Saint-Germain asserts that the root of inequity lies not merely in a case's divergence from the legislator's will but rather in the contradiction between the proposed solution and natural law, synonymous with the law of reason. He illustrates this point with a clear example borrowed from Aquinas's teachings (with the gates of the city closing). Page 27 sur 73  Synthèse du syllabus de Natural law | 2023-2024 | Sarah Lefrarni Furthermore, akin to Suarez's expansion of the concept, Saint-Germain introduces a compassionate dimension to equity, describing it as the "sweetness of mercy." This addition, absent in Aristotle's original conception, serves to mitigate the strictness of legal interpretations. Modern interpretations often embrace this compassionate aspect of equity, which, at times, has led to concerns about potential arbitrariness and subjectivity in judicial decisions. An illustrative scenario, like a parent stealing bread to feed their children, reflects a departure from the Aristotelian view of equity and aligns more with an approach that seeks to balance legal rigor with merciful considerations. 2. Richard Hooker Born in 1554, Hooker was educated at Corpus Christi College, Oxford, where he became a professor in 1577, before being ordained a priest in 1579 and marrying a few years later. Hooker is best known for the publication of his The Laws of Ecclesiastical Polity in 1594. In this book, he developed Anglican theological thought, against Puritan critics who demanded, in the spirit of Calvinist reformation, the pure and simple disappearance of the clergy. The laws of nature/reason(voy text page 64) In the evolution of natural law, the departure from its 'natural' dimension becomes more evident in the works of Hooker, a departure already perceptible in Saint-Germain. Hooker defines natural law as what reason can discover without reliance on revelation or divine assistance, emphasizing its alignment with the law of reason. While paraphrasing Aquinas extensively, Hooker introduces the idea of an inconvenient state of nature, suggesting that escape from it necessitates submission to public government for the attainment of peace, tranquility, and property enjoyment. He acknowledges a potential natural right to govern for the noble, wise, and virtuous, reminiscent of Plato, but insists on its exercise being contingent on the consent of the governed, thus introducing a significant limitation. Although the inclination of humans to live in society echoes Aristotle, Hooker introduces a distinct individualistic and 'contractual' dimension to civil society. The pursuit of one's interests drives individuals to seek company, and the requirement of unanimous consent foreshadows elements later found in social contract theories. Hooker's work, seen as a conduit for continental political theory into England, likely influenced thinkers such as Thomas Hobbes and John Locke. The défintion of law “They who are thus accustomed to speak apply the name of Law unto that only rule of working which superior authority imposeth; whereas we, somewhat more enlarging the sense thereof, term any kind of rule or canon, whereby actions are framed, a law” (HOOKER, The Laws of Ecclesiastical Polity) In this second excerpt, Hooker evokes in his first sentence the positivist position “par excellence”: one calls law only those rules that have been adopted by the higher authority. However, Hooker prefers a broader meaning of the word 'law' (which, for the record, also translates as 'right'), namely all rules that are intended to guide, or direct, or impose behaviour on man. Chapter 3. Modern Natural Law §1. The context a) The 17th century and the Scientific Revolution The 16th century saw relative economic expansion, particularly due to wealth from South American colonies, but from 1600 onwards, Europe faced deteriorating conditions. The continent was recovering from the Reformation while grappling with economic crises, plague outbreaks, and political instability. Spain's dominance waned, Germany remained fragmented, and France struggled with religious tensions exacerbated by Henry IV's assassination in 1610, leading to the devastating Thirty Years' War. In England, the Tudor dynasty ended with Elizabeth I's death in 1603, ushering in the Stuart line. James I's reign highlighted the clash between absolute monarchy and English political traditions. Chief Justice Edward Coke emphasized the monarch's subordination to divine authority and common law, notably asserting in the Bonham Page 28 sur 73